2025
What if our treasurer refuses to renew the strata insurance?
Page 10 | Strata Insurance Solutions
How do we stop children from speeding through the complex on e-scooters?
Page 16 | Mahoneys
Bikinis by the pool. How brief is too brief?
Page 32 | Bugden Allen
LookUpStrata is Australia’s Top Property Blog Dedicated to Strata Living. The site has been providing reliable strata information to lot owners, strata managers and other strata professionals since 2013.
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Among other daily tasks, Liza is involved in scheduling and liaising with upcoming webinar presenters, sourcing responses to audience questions and assisting strata service professionals who are interested in growing their business.
changing from the Accommodation to the Standard Module make it more difficult for landlords to obtain short-stay permits from the
about
the committee take into consideration when making a reasonable decision on who pays the excess? Todd
Documents:
an owner block car park ventilation vents to protect their car?
Dean
the committee remove owner’s stored items from the car park? Karen
Is implementing a discount to early payment of levies a committee decision?
At a recent committee meeting, the committee voted to implement a discount for early payment of levy contributions. Is this a committee decision, or should this go to a general meeting?
The committee doesn’t have the authority to override the decision of the owners.
The inclusion of a discount is usually written into the motions to raise the admin and sinking fund levies. As owners approve these at a general meeting, the committee doesn’t have the authority to override the decision of the owners. Any changes to the current process would require approval at an Extraordinary General Meeting (EGM) or presentation at the next Annual General Meeting (AGM).
However, the committee does have the right to present motions to owners and to determine the wording of motions at future meetings. Therefore, if the outcome of the committee meeting were that the levy motions would be presented at the next AGM with the inclusion of a discount, that would be a fair decision. If owners agreed, they could then vote to approve the proposal.
For what it is worth, and from a manager’s perspective, I don’t think discounts are a positive for body corporates. My rationale is that levies are monies paid to yourself, and you can’t give yourself a discount. In other words, the body corporate can’t give the owners a true discount because the body corporate is the owners.
At most schemes where there is a discount, this is achieved by artificially raising the levies by an amount equal to the discount. To allow for a ten per cent discount, you must increase the budgeted amounts by ten per cent. If you don’t, there will be a shortfall in income. From an accounting perspective, this is unnecessary and sometimes leads to a confusing distortion of the accounts.
The counterargument to this is that people view discounts as an incentive to encourage owners to pay on time. However, most schemes also have penalties in place for non-payment to help regulate this issue. Empirically, I haven’t observed any differences in on-time payment rates at schemes with discounts versus those without. I know the accounts are cleaner, and there are fewer debates about whether payments are made on time at the buildings without discounts.
William Marquand
| Tower Body Corporate willmarquand@towerbodycorporate.com.au
How does the timing of expenditure for essential repairs impact the potential for claiming these deductions by individual owners or the overall financial health of the scheme?
What is the potential opportunity cost of delaying special levy funded essential repairs? How does the timing of the expenditure financed by a special levy now compare to the later impact the potential for claiming these deductions by individual owners or the overall financial health of the scheme?
There is a tendency for committees and owners to consider the expenses, try to go cheap, delay the work or do it in stages.
This is less of a tax issue and more of a practical problem. Generally, there is a tendency for committees and owners to consider the costs first. They worry about the expense, may try to go cheap, delay the work or do it in stages.
In my view, there are some situations where staging is acceptable, but it is rarely a good idea. The issues may not be limited to financial concerns. They are also emotional. Owners don’t want to live in a construction zone for the next five years. It’s tiring, and it’s hard work for the committee. You are better off working out the right project and doing it once rather than staging works over several years.
Staging the project often results in additional costs due to duplication. If you have to put scaffolding up, do everything requiring scaffolding at that one time, even if the painting schedule might not be due for four years. The cost of work on strata buildings seems to increase annually by a lot more than inflation, the CPI, or the labour and materials index (LMI).
Paul Morton | Lannock Strata Finance paul@lannock.com.au
Lannock Strata Finance has been at the forefront of strata finance for twenty years, pioneering simple and flexible strata funding for strata communities.
As Australia’s leading strata lender, our flexible-use funding is designed exclusively to meet the needs of all strata communities, no matter how large or how small, including:
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It’s difficult for body corporates to control costs when repairing spalling. How do we receive a reliable estimate for concrete spalling repairs?
How do we know how much it is going to cost to fix spalling? We understand why it’s difficult to get a true estimate, but at the same time, our capital works fund isn’t a bottomless bucket. How can body corporates control costs when repairing concrete spalling?
Have an engineer provide a detailed scope of works first.
Get an expert involved to supply a defined scope of work detailing what work needs to be done. I recommend you spend a little more upfront on an engineer to carry out exploratory work. They can remove the concrete in some areas to get a better idea of the extent of the damage. The engineer can then clearly define the scope of work.
When you approach builders for quotes, you’ll give them the best opportunity to price the work accurately. Don’t go to a builder saying “Can you give me a quote to repair spalling.” If the builder does not know the extent of the work, their quote will include a buffer to ensure they cover themselves. Getting an expert to provide a detailed scope of work first will give the committee the best chance of successfully controlling costs.
Bruce McKenzie | Sedgwick bruce.mckenzie@au.sedgwick.com
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Our treasurer refuses to renew the strata insurance, stating it’s not required. I thought everyone understood the need for insurance in strata, as well as the need to cover themselves as an office bearer. How should I approach this matter?
The adjudicator can make an enforceable order compelling the body corporate to take out the necessary insurance.
Under the Body Corporate and Community Management Act 1997 (QLD) and its accompanying regulations, it is a legal requirement that the body corporate hold insurance for:
1. Full replacement value of common property and building/s (if it is a building format plan of subdivision); and
2. Public liability insurance, with a minimum cover of $10 million for any one occurrence.
These obligations are not discretionary — the committee, including the treasurer, must act in accordance with the Act. A treasurer does not have the authority to unilaterally decide that insurance is “not required,” particularly when it is mandated by legislation.
Failing to insure places all lot owners, residents, and even the committee members themselves at significant financial and legal risk. Not only could this result in personal liability for committee members (particularly in the event of an incident), but it could also expose the body corporate to regulatory action and loss of protection in the event of a claim.
If the body corporate is not complying with its statutory insurance obligations, any lot owner has the right to lodge an application for adjudication with the Office of the Commissioner for Body Corporate and Community Management.
The adjudicator can make an enforceable order compelling the body corporate to take out the necessary insurance.
Tyrone Shandiman | Strata Insurance Solutions tshandiman@iaa.net.au
Mention this offer when requesting a quote from us, and we will provide a discount off our standard fee for service of $250 (GST Inc) for buildings with 10-25 lots or $500 (GST Inc) for buildings with more than 25 lots for the first year you insure with Strata Insurance Solutions.
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Does changing from the Accommodation to the Standard Module make it more difficult for landlords to obtain short-stay permits from the Council?
Our Brisbane scheme is under the Accommodation Module. Does changing to the Standard Module make it more difficult for landlords to obtain short-stay permits from the BCC?
We are a 78 lot scheme under the Standard Format Plan and the Accommodation Module and in the Brisbane City Council (BCC) area. Most of our lots are owner-occupied. Owners who rent their lots have requested permission for short-stay and holiday letting. Under BCC regulations, landlords are required to obtain a permit for short-term letting.
We are located out of the city but close to a large shopping centre, a train station and have good bus connections. As the present Accommodation Module favours holiday letting, if we change the regulation module to the Standard Module, would it be harder for a landlord to obtain a short stay permit from the BCC?
There is nothing in either the Standard or Accommodation Module which precludes the short term letting of lots.
I am not familiar with the BCC rules as they vary from Council to Council. However, there is nothing in either the Standard or Accommodation Module that precludes the short term letting of lots. To answer that specific question – it would not make any difference with respect to which Module you are in so far as the questions relate to strata law.
Frank Higginson | Hynes Legal frank.higginson@hyneslegal.com.au
Our scheme has a blocked underground storm drain pipe flowing down from an external neighbour’s property into our drain network. Who pays for unblocking the drain?
Our 30 lot Accommodation Module scheme has a blocked underground storm drainpipe flowing down from an external neighbour’s property into the body corporate’s drain network. There is no open storm drain pit connected to this pipe or a tree growing in the vicinity in the body corporate section of the pipe. The blockage may be in the body corporate’s section of the pipe downhill.
Who pays for the unblocking of an underground stormwater drainpipe in the above scenario?
The simple answer would be that the party that owns the pipe should pay for the unblocking.
The difficulty is likely in establishing which party owns the pipe and then having that party take action to rectify the issue.
Identifying ownership could be difficult. Review any plans you have for the scheme, particularly sewerage plans to see if there is any indication. If necessary, you may need to obtain these plans from the council.
You could also try reporting the issue to the council – different councils may handle these issues differently. Even if it is not their responsibility, they may point you in the right direction. You could also engage a plumber to inspect the pipe with a camera. They may be able to identify the location of the blockage and advise you on ownership.
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• ABNs, ACNs, business registrations
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A further alternative could be to contact your neighbours to discuss the issue – if it is bothering you, it may well be bothering them. Who knows, maybe they have already arranged for someone to clean it, or maybe they are unaware that it is a problem at all.
Your body corporate manager should be able to help you with the legwork. If the issue was serious enough, you could also consider appointing a lawyer to help you try to resolve the matter. A legal demand may also be necessary if you identify the responsibility to an external party and they are reluctant to take action.
William Marquand | Tower Body Corporate
willmarquand@towerbodycorporate.com.au
1300 309 201 info@contractorconnect.net.au www.contractorconnect.com.au Contractor Connect Pty Ltd ABN 20 602 967 117
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Children on e-scooters and e-bikes zoom around the complex at speeds exceeding our 10km/hour speed limit. Should we change signage to include e-scooters and e-bikes as part of the 10km speed limit, or what should we do?
Use of e-scooters and bikes by children on scheme land may amount to a ‘hazard’ depending on the relevant circumstances.
Generally, bodies corporate cannot enforce arbitrary speed limits unless the body corporate has sufficient evidence to justify the imposition of a particular speed. The adjudicator in Canterbury & Westminster [2008] QBCCMCmr 234 relevantly provided:
“I am of the view that any specific ‘speed limit’ which the Body Corporate may set would be advisory only and not able to be strictly enforced. However, if the speed or any other aspect of the manner of a person’s driving on common property was dangerous or otherwise could be shown to cause an unreasonable interference to the lawful use of the common property, that activity would amount to a breach of the Act.”
Accordingly, a body corporate cannot enforce a speed limit of 10km per hour unless the body corporate can provide evidence to justify the imposition of this specific speed limit, usually through a health and safety report.
The dangerous operation of personal mobility devices (such as e-scooters and bikes) may be more appropriately regulated by Section 167 of the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) which provides occupiers must not use, or permit the use of a lot in the scheme or the common property in a manner that causes a ‘hazard’. Depending on the construction of the scheme’s by-laws, this legislative obligation may be contained in the by-laws for the scheme and may constitute a breach of the by-laws.
What is determined to be a ‘hazard’ is determined on a case-by-case basis, taking into account all relevant circumstances (noting the BCCMA does not define ‘hazard’). The adjudicator in Dewsbury Park [2023] QBCCMCmr 297 relevantly provided:
“In the case of Mirana Investments Pty Ltd and Ors v Coupe, QCAT grappled with the question of whether the respondent was in breach of section 167 of the Act by using his lot in a way that caused a nuisance or hazard. QCAT found the term ‘hazard’ is a non-technical term that “… plainly relates to situations with a potential for harm which has not yet occurred.” It referred to Macquarie Dictionary definitions for the word as:
1. A risk; exposure to danger or harm
2. The cause of such a risk; a potential source of harm, injury, difficulty.”
Accordingly, use of e-scooters and bikes by children on scheme land may amount to a ‘hazard’ depending on the relevant circumstances.
Todd Garsden | Mahoneys tgarsden@mahoneys.com.au
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Problematic tenants were evicted, but the RE agent will not pay for recoding the gates and intercom. Who should pay this cost?
A real estate company approved tenants who turned out to be drug dealers and caused massive security concerns and numerous police incidents in our scheme. The tenants were evicted but never returned the set of keys, which included the vehicle gate remote and pedestrian gate key.
The real estate is changing the unit locks but refuses to pay for changing the pedestrian gate’s lock or for reprogramming the unit or the vehicle gate’s intercom code. Who is financially responsible for this? Is it the real estate’s responsibility, or does the unit’s owner or body corporate need to pay this cost?
Change the system to allow security to be switched on or off with a button rather than try to sue someone for a small amount of money.
The practical answer to this one is to make sure the security systems installed can easily have people removed without having to change everything. After that, the situation is (to a degree) analogous to the situation where an owner occupier lost their keys. What happens then? Do they get pinned on the cost of rekeying everything?
A special resolution would be required for the body corporate to commence a proceeding – which is always a high bar. The most pragmatic answer is to change the system to allow security to be switched on or off with a button rather than trying to sue someone for a small amount of money, which will likely cost more to pursue than can be recovered – even after any costs are awarded.
Frank Higginson | Hynes Legal frank.higginson@hyneslegal.com.au
A r e y o u r b y - l a w s
l e g a l l y v a l i d a n d
e n f o r c e a b l e ?
C l a i m y o u r
F R E E B y - L a w s
A s s e s s m e n t
Any communication about body corporate business is very likely going to be a body corporate record
Can the committee communicate informally via a closed WhatsApp group? These conversations are not always about the body corporate. Are they body corporate records?
Can the committee communicate informally via a closed WhatsApp group? Some committee members do this for efficiency and to alert members to an email. We also used the chat for personal messages, such as happy birthday wishes. We make no decisions. Do we need to include this chat in the body corporate records for owners? What about text messages to individual members?
Any communication about body corporate business is very likely going to be a body corporate record.
This is a great question. It raises one of the biggest issues in strata – body corporate records and access to them – and provides an opportunity for a quick refresher on what we consider best practice for committees.
How a committee communicates is up to them, be it in person, by email, text messaging, What’s App or carrier pigeon, for that matter. Having said that, any communication about body corporate business is very likely going to be a body corporate record. That means the communication is available to interested persons, such as owners, as well as tenants (occupiers) and people like agents for either of those parties.
Legislation changed in Queensland in 2024 to effectively broaden the scope of what a ‘record’ is. Text messaging and WhatsApp communications, while not explicitly referred to in legislation, are nonetheless very likely to be captured by this legislative definition.
This then raises the ‘best practice’ issues. Committees should always keep in mind that anything they say about the operation of the scheme will very likely be available for search by a pretty wide range of people.
That means committee members should try to keep their communications ‘on point’, factual and objective. Ideally, the business of being on a committee and day-to-day life, such as sending happy birthday wishes, would always be kept separate. Dedicated email addresses for body corporate business are a way of doing this.
This is general information only and not legal advice.
Chris Irons | Strata Solve chris@stratasolve.com.au
Solve helps untangle and resolve strata issues, and in the process protect the value of your strata asset, without the need for time-consuming, expensive and stressful legal proceedings.
Director and Founder of Strata Solve Chris Irons (pictured with the late Ernest, Strata Solve mascot) has an unrivaled strata perspective. As Queensland’s former Commissioner for Body Corporate and Community Management, Chris has seen and heard virtually every strata situation and nuance. He knows that while legislation provides a framework, there are many ambiguities to navigate through and in which pragmatism, common-sense and effective communication are vital.
As an independent strata consultant, Chris provides services based of his experience as an accredited mediator and which are all about empowering owners, committees, managers, caretakers, tenants, not-for-profits and others, to protect their strata interests. Chris uses tailored solutions to help his clients: one size definitely does not fit all in strata. Book a f free, initial consultation now to find out how we can work with you to resolve your strata issue.
email: chris@stratasolve.com.au web: stratasolve.com.au
should the committee take into consideration when making a reasonable decision on who pays the excess?
Cyclone Alfred impacted a small number of unit owners. What should we take into consideration when making a reasonable decision on who pays the excess?
I am the secretary and treasurer of a 30-townhouse residential complex in Brisbane. The complex is under the Accommodation Module. Cyclone Alfred impacted a small number of unit owners. The committee is trying to determine whether those owners should share the insurance excess between them, as the responsible parties for their lots, or whether the body corporate should pay.
The impacted lot owners are less than 25% of the total number of lots. The Regulation states that if the body corporate finds it reasonable, it can require the impacted owners to pay the excess. The decision is further complicated by an upcoming $5,000 insurance increase on 1 July 2025. What options do we have, and what should we consider when making a reasonable decision?
Todd Garsden | Mahoneys tgarsden@mahoneys.com.au If repairs could
Deciding on an issue such as this does sometimes afford a reasonable level of discretion. Acting reasonably does not mean that there are mutually exclusive outcomes. For example, it may be reasonable for select owners to bear the excess, and it may also be reasonable for the body corporate to do so.
Many of the disputed decisions on this issue are tied to whether there was a maintenance failure of the body corporate that contributed to the insurance event causing damage. For example, if the water was able to ingress into the lots because of a poorly maintained roof, and the body corporate was responsible for maintaining the roof, it would be typically expected that the body corporate would bear that excess cost burden.
However, if the water ingress could not be attributed to any failure of the body corporate, it is difficult to see how the balance of unaffected owners should be contributing to the excess costs.
make sure they comply with
We are a small, self-managed property with three lots and limited funds. Are we required to complete a tax return?
We are a small, self-managed property of three lots. We don’t have much money in the body corporate funds. Is there a threshold we need to consider before we pay taxes or submit a tax return?
Our levies are set at $275 each per quarter, with minimal overheads apart from water bills, building insurance, and the occasional building valuation. Are we required to complete a tax return?
Whilst there may be no legal requirement to lodge a tax return, our general practice every year is to lodge a client update form, telling the ATO that a return is not required.
Body corporates are taxed as public companies, so there is no tax-free threshold. As soon as you earn more than a dollar of accessible income, such as interest, you are required to lodge a tax return.
In this situation, I’ll assume there is no interest income in the accounts. Whilst there is no legal requirement to lodge a tax return, our general practice every single year is to inform the ATO that a return is not required. Otherwise, in three or four year’s time, the ATO may say, “Strata plan A has not lodged a tax return since 2001. Please lodge them now, even if they’re all nil.” If you don’t submit this within 30 days, the ATO will fine you $900 per year, so we recommend submitting a client update form to the ATO annually to confirm that your building is not required to lodge a return.
Rod
Laws | TINWORTH & CO RodLaws@tinworth.com
Without approval, a coffee shop tenant in our mixed-use building constructed a cool room on common property. What action should the committee take against the lot owner and the tenant?
Our body corporate has commercial units on the ground floor, including a coffee shop. Without approval, the coffee shop’s tenant constructed a large cool room on common property adjacent to the cafe.
The tenant has been told that this is a problem but as it the cool room has already been constructed, they don’t seem to have a concept of the consequences.
The body corporate committee doesn’t know what to do and appears to be ignoring the matter.
What are the legal consequences of this, and what action should the committee take against the lot owner and the tenant?
Delay by the committee to take enforcement action can result in the occupier being able to keep the cool room without any formal approvals.
There is likely a by-law relevant to this circumstance in the scheme’s Community Management Statement. If so, the body corporate has a duty to enforce its bylaws and should do so by issuing the relevant contravention notice to the person that contravened the by-law (which seems to be the tenant or the occupier).
It also seems that the cool room would be an improvement to common property, which requires the consent of the committee, or body corporate at general meeting. The nature of that improvement will also dictate the type and requirements of any resolution for retrospective approval.
Also, it is possible that the outcome is different if the area of common property in which the cool room has been constructed is the subject of an exclusive use by-law in favour of the coffee shop’s lot.
Delay by the committee to take enforcement action can result in the occupier being able to keep the cool room without any formal approvals. There are a few aspects that would require further legal analysis, and the body corporate should be investigating those matters to ensure the common property is able to be used and enjoyed by all and the proper approval processes are followed.
Brendan Pitman | Grace Lawyers brendan.pitman@gracelawyers.com.au
When it comes to fire safety, many body corporates believe that keeping receipts for maintenance work is enough to prove compliance. However, Queensland law requires the presence of prescribed documents
What Are prescribed documents?
Under Queensland’s Building Fire Safety Regulation 2008, prescribed documents are mandatory records that prove your building’s fire safety systems are properly maintained and compliant.
Key prescribed documents
1. Fire Safety Management Plan
2. Evacuation Diagrams
If a retrospective investigation finds any aspect of your fire safety non-compliant, you risk voided insurance, hefty fines and even jail That’s why it’s crucial to get an independent third-party consultant to audit your building.
4. Record of Fire Drills & Evacuation Practices
5 Annual Occupier Statement
Why compliance isn’t optional
In the event of a fire, these documents are the first thing a coroner will request If they’re missing, incomplete or do not include the required information, your body corporate could face serious legal consequences including allegations of negligence.
Failing to maintain/produce these records can result in:
Heavy fines and penalties
Voided insurance claims
Legal liability in case of injury or death
Need help ensuring your prescribed documents are in order? Contact us for a professional fire safety audit because compliance isn’t just paperwork, it’s life safety
Stefan Bauer Fire Matters
Fire Matters provides an unbiased fire compliance assessment that could save you thousands We also ensure your residents are fully trained in the event of a fire, giving you peace of mind when signing your occupier’s statement.
An owner would like to block the ventilation system in our basement car park to protect their car from salt spray. How should the committee respond?
I am the chair/secretary of our body corporate committee. In our basement car park, we have six ventilation louvres. An owner’s car space is directly under one of the vents. They own a Tesla car and have asked if they can block off the vents.
The building is beachside, and salt air is a factor. Alternatively, the owner suggested placing a protective roof over the vehicle. We are concerned that both suggestions interfere with the design of the ventilation system. Is this correct?
Obstructing the ventilation system louvres will prevent the system from operating as per the design specifications.
Ventilation systems, whether mechanical or non-mechanical, are designed for safety in car parks, particularly to remove toxic fumes such as carbon monoxide. Obstructing the louvres will prevent the system from operating as per the design specifications. It is also in breach of Building and Fire Safety Regulations.
An alternative solution should be investigated, and approval sought from the body corporate. Simple solutions may include over-the-counter products applied to the vehicle surface and components.
Dean Potgieter | Seymour Consultants dean@seymourconsultants.com.au
Since 2001, Seymour Consultants has applied professionalism, honesty and integrity to every project and built a reputation as a market leader in the Strata Industry.
With a background of over 25 years experience in Quantity Surveying, Construction and Development, you can be sure to benefit from our experience for your reporting and project based needs.
Call us today on 07 5573 4011 Email us on: info@seymourconsultants.com.au Visit our website: www.seymourconsultants.com.au
Our main objective is to work in partnership with you as we share a joint interest in the success of each and every project.
• Fire Safety Auditing, Evacuation Planning & Training
• Pool Certification
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• Lot Entitlement Reporting
• Building Condition Reports
• Quantity Surveying
• Health & Safety
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• Asbestos Auditing
• Insurance Valuations
• Caretaking Performance Reviews
• Caretaking Remuneration Reviews –Time & Motion Study
• Management Rights – Suitability Interview & Assessment
• Tax Depreciations
• Part Five Reporting
Can the committee remove owner’s stored items from the car park?
The committee would like to clean up the parking area. Owners store their items outside of their lot car park spaces against common property walls. Can we remove these items?
The committee would like to clean up the common property parking area. Our building has high turnover of tenanted lots. Residents and past residents stored their items outside of their lot car park spaces against common property walls. Can the committee remove these items?
The committee must handle this issue in accordance with the Act and your by-laws.
It is not uncommon for residential strata complexes with high rental turnover to face issues with the unauthorised use of common property for storage.
The committee must handle this issue in accordance with the Body Corporate and Community Management Act 1997 (Qld) (“the Act”) and your by-laws.
Common property must not be used for private storage without body corporate approval. Where property is stored outside of the allocated car parks (e.g., against walls in the basement), the committee may:
1. Issue a written request to the lot owner or occupier to remove the items as they are obstructing common property.
2. If the items are not removed, consider issuing a formal contravention notice under Section 182 of the Act, which gives the body corporate power to take enforcement action
3. In some cases, particularly where items pose a safety risk or impede access, the committee may need to engage legal advice to determine whether removal is permitted and how to do so without breaching occupants’ rights.
As a general rule, owners and tenants should only store property within the boundaries of their allocated lots or exclusive use areas, with the consent of the body corporate and in line with your by-laws. Where lot entitlements include a car park, storage within that car park is typically permitted (subject to fire safety and obstruction concerns). Still, any property stored on common property outside these boundaries should be removed. If items are permitted to be stored within the boundaries of a parking bay, the occupant’s vehicle must also be able to be parked within the boundaries of the parking bay and not protrude over common property.
If unsure, committees are encouraged to seek qualified strata law advice or consult with the
A lady in our complex wears an extremely brief bikini around the pool. She has been asked not to wear it, but she has refused to do so. Due to the diverse cultures and religions in our building, we’ve had resident complaints. What do we do?
We have a lady in our complex who wears an extremely brief bikini around the pool. It hides nothing. Referring to by-law 18 inappropriate attire, we have asked her not to wear the bikini. She has refused. Other than going to the Commissioner’s Office, is there another way we could approach this? Due to the diverse cultures and religions represented in our building, we’ve had resident complaints.
The correct processes can lead to the formation and adoption of a community ‘norm’ of behaviour about pool attire.
Let’s face it, everyone has their own idea of what’s “appropriate” when it comes to swimwear, which can lead to some interesting (and occasionally awkward) situations in strata complexes.
In Queensland, the most certain rule is that a person in a public place, or who is so near a public place that they can be seen from the public place, must not wilfully expose their genitals unless they have a reasonable excuse; per Section 9 of the Summary Offences Act 2005. Doing so deliberately to offend or embarrass another person is an aggravating circumstance, which can escalate the fine from a maximum of $322.60 (2 penalty units) to $6,452 (40 penalty units) or up to a year in prison! The body corporate can prosecute a breach of Section 9 in the local Magistrates Court.
If the swimwear is not that revealing, then the next question is whether the wearing of it interferes unreasonably with the use and enjoyment of the common property or another lot in the scheme, by the offended owners or occupiers; see Section 167(1) of the Body Corporate and Community Management Act 1997. The ‘unreasonable interference’ does not have to be substantial, but it does need to be of such a nature or frequency so as to interfere unreasonably with another person of ‘ordinary sensitivity’; see Norbury v Hogan [2010] QCATA 27 which, despite being 15 years old, remains good law and is frequently cited by Adjudicators, such as in Proud’s Landing [2025] QBCCMCmr 115. The ‘unreasonable interference’ test is, therefore, an objective one and not based on the particular sensitivities of the person/s offended. A breach of Section 167(1) can be the subject of an Adjudication Application under Chapter 6 of the BCCM Act, typically to seek orders that the breach not be repeated.
If Section 167(1) does not go far enough, as far as this particular body corporate is concerned, then by-laws are usually the next port of call. By-laws are not allowed to be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme, per Section 180(7) of the BCCM Act. One way of complying with this limitation is for the by-law to refer to another standard or rule that is accepted in the community, preferably one where the community titles scheme is located. That is what occurred in Dewsbury Park [2003] QBCCMCmr 150 when the Adjudicator upheld a by-law that provided, in part, that the dress standard for the common property pool was the same as for Brisbane City Council Public Pools, from time to time, unless altered by the committee.
If local council dress standards are either unavailable or unhelpful, then the standards used by some clubs may assist as a starting point; for example, the Masters Swimming Australia – Swimwear Rules 2020 provide, amongst other things, that members swimwear must be ‘in good moral taste’ and ‘nontransparent’. The ‘non-transparent’ criteria are objective, while the ‘in good moral taste’ criteria are more difficult to determine.
Putting all of this together, a good by-law, having good chances of being upheld, would contain objective criteria, preferably founded in local community standards, and based on observable facts (i.e. all swimwear must be non-transparent, and, for example, thongs, micro-bikinis, mankinis and similar attire are not permitted), coupled with a (severable!) additional criteria that, in addition to, and without derogation from, any of the other criteria, the swimwear, or the wearing of it, must not be of a nature which is likely to offend a person of ordinary sensibilities.
If the by-law is breached, orders can be sought from a Departmental Adjudicator, or the offence of breaching the by-law can be prosecuted directly in the local Magistrates Court.
The issue of cultural or religious discrimination is beyond the scope of this short answer but is worthwhile digging into.
However, before taking any action, it is wise first to ensure that the behaviour is outside the community’s expectations and not just the expectations of a small section of the community. To ‘kill two birds with one stone’, the body corporate might first commence consultation about a new pool by-law, which addresses pool attire more comprehensively. At the end of meaningful consultation, a draft of the by-law could be released for further comment and then, after amendment, put to the vote to be adopted. The strength of the vote adopting the by-law indicates how well-accepted the new standard is. When enforcing the new by-law, warning notices could be given during a ‘phase in’ period, rather than jumping straight to the body corporate issuing a notice of contravention of the by-law.
Following these sorts of processes can often lead to the formation and adoption of a community ‘norm’ of behaviour in relation to pool attire, which is both useful in and of itself and which some legal theorists will say is an essential pre-requisite to meaningful enforcement of the by-law that reflects it.
Michael Kleinschmidt and Evelyn Hearn | Bugden Allen michael.kleinschmidt@bagl.com.au
Tower Body Corporate
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Bright & Duggan
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Vision Strata Services
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SSKB Strata Managers
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Northern Body Corporate Management
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Bryant Body Corporate Management
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Quantum United Management
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Archers the Strata Professionals
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Commercial Building Facade Solution
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Altec Building
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Building Experts Australia Pty Ltd
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Rawlinsons
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Strataregister.com Pty Ltd
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QIA Group
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BCRC
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HFM Asset Management Pty Ltd
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Leary & Partners
Quantity Surveying Services Since 1977
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Solutions in Engineering
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Mabi Services
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Urbanise
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Rochele
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Strata Solve
Untangling strata problems
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Independent Embedded Network Consulting Services
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Windowline Pty Ltd
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Clear Edge Frameless Glass
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Total Entrance Solutions
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